dissented, and delivered the following opin-
ion :—
The suggestion filed in this case avers the disqualification of the respondent to hold the office of sheriff of Allegheny county, to which he claims to have been elected in 1866, in this: that his commission pursuant to that election was the second to him for the office of sheriff within six years, and therefore violative of the 6th article, sect. 1, of the Constitution of the Commonwealth, which, among other things, declares, that “ no person shall be twice chosen or appointed sheriff in any term of six years.” Disqualification being an incapacity to hold the office is undoubtedly a ground of ouster, and consequently the suggestion is sufficient in law to be replied unto: Rex v. Mayor of Bedford, 8 Mod. 35; Rex v. John, Id. 132; and Rex v. Powell, Id. 165.
The truth of this averment was not controverted on the argument ; nor that, within the meaning of the Constitution, the defendant had been twice chosen or appointed inside of the prohibited period, to the office of sheriff. The objection was, that the relator had shown no such interest in the question attempted to be raised, as would entitle him to file the suggestion and call for the defendant’s warrant for exercising the office.
It was not much insisted on that the office of sheriff is not a county office. This was incapable of denial; it has always been so. The name or title “ sheriff” is said to be derived from the Saxon word “ seyre,” a shire, or county, and “ reeve,” “ bailiff,” or “ keeper;” the seyre-reeve, sheriff or bailiff of a county.
The Constitution, in article 6, makes it a county office by providing that “ Sheriffs and coroners shall be chosen by the citizens *276of each countyand the Act of 1834 relating to counties and townships, and county and township officers, classes it with county offices. His duties, in the absence of special authority, are confined to the county in which he is chosen or appointed.' A private rela.tor is, therefore, competent to file the suggestion, and raise the question of the validity of the defendant’s commission. The Quo Warranto Act of 1836 provides that “ the suggestion in such a case may be filed by any person or persons desiring to prosecute the same.” The practice has been uniform that a county office is within this provision. I do not deem it necessary to cite authorities for this, especially as the great question is in regard to the interest necessary to he shown in the relator, which virtually concedes this point.
In The Commonwealth ex rel. Clark v. Read, 2 Ashm. 264, the suggestion merely set forth that the relator was a “ citizen and resident of Philadelphia county, and as such, interested in the just and due administration of the laws therein, and sues,” &e. This suggestion was to try the defendant’s title to the office of county treasurer. The case was tried before King, President 5f the Common Pleas, and argued by able counsel, and the objection of want of special interest in the relator, was not suggested by anybody, although there he was not even a defeated competitor for the office. In this particular the statute' was strictly followed, which says any one desirous to prosecute the writ may do so.
I have not been able to find a case, nor has any been referred to in argument on the part of the defendant, going to prove what is contended for, viz., that the relator, where the question involved is a county office, is required to exhibit any special interest in the controversy. It is quasi a criminal proceeding, and why may not any citizen prosecute the same, as in cases of misdemeanor or felony ? The Act of Assembly and the case referred to certainly show that he may. The cases cited do not prove the contrary : The Commonwealth v. The Bridge Co., 8 Harris 185 ; The Commonwealth v. The Germantown Railroad Co., Id. 518; and The Commonwealth v. The Farmers’ Bank of Schuylkill Co., Id. 415, were cases of corporations ; and it was decided that no private relator could move to take away the corporate franchise of a company organized for public purposes. That the attorney-general was the proper officer to file the suggestion. So in The Commonwealth v. Burrell, 7 Barr 34. These cases obviously furnish no rule for a case of this kind. The franchises assailed were 'public and general, and so was the office of president judge, not local and domestic’, as is a county office. As neither the Act of Assembly nor any decision teaches any other doctrine, I am of opinion that a private relator, a citizen and taxpayer of a county, has a right to file the suggestion necessary to lay the foundation *277for the writ of quo warranto to test the validity of claim or right to a county office. He has the right, in my opinion, by virtue of his membership of the municipal corporation. This I think the law intended.
But has not the relator ■ in this case an interest ? He was the defeated competitor for the office when the defendant was declared elected. I think he has an interest in trying who is entitled to the office. He had votes enough to elect him, if there were no legal votes or legal candidate in the field against him; and certainly, being declared defeated, he has a right to have this tried if he can suggest grounds to show probable cause that his competitor was not elected, or entitled to hold the office. If he has not, no other private party could ; and as the attorney-general is not bound to interfere in mere municipal contests, a great wrong might, add would, often go unredressed. Besides, this rule w'ould abolish the rule well understood, that the intervention of the attorney-general is only required in regard to state offices and public franchises. It seems to me this ought to be a sufficient answer to this objection.
But farther:—
In the election laws, wherever a contest is authorized, it is usually required that there be a contestant, and that is always the defeated candidate, although sometimes the result is a new election. This is something like a recognition of an interest in the contestant. In fact, the absence of such’ an interest as a title to the office, cannot be an objection if we regard the 15th section of the Act of 1840. That provides that the court may decide against both parties in the contest, and may order a new election. But according to the argument, the controversy would necessarily cease the moment it should appear that the relator had no title to the office, and thus a new election might never be allowed. I think this conclusively shows that it is not indispensable that it should appear that the relator is entitled, or prima; facie entitled, to the office; and this is the only special interest a relator ever can have. Whether a relator has this interest or not, he has a right to go forward to try the question, not only whether he shall have the office, but, if not, to -show that neither shall. In this last event, he would undoubtedly have no interest, as the result would necessarily demonstrate.
But I confess my inability to see, if it must be treated as a preliminary question, why, if the constitutional disqualification of the defendant be established, the relator is not entitled to the office. He had votes enough to elect him if the votes given for the defendant be regarded as thrown away. This cannot be disputed. It seems to me this position cannot be controverted, that if the votes cast for the defendant would not confer the office on him, that they did not possess the faculty or capacity of depriving *278the plaintiff of his election, having, as already said, enough legal votes to elect him. The majority of votes cast operates only in one direction, namely, to elect, and by electing, defeat any competitor ; but without electing, I deny that the effect is to defeat a competing candidate. The thing is not- possible. If it were, a majority of votes for a fictitious candidate, or one notoriously ineligible, would defeat an eligible candidate. The elective franchise cannot operate in such a way. If people do not vote generally, they consent that those that do may elect. This is the rule in all popular elections. If, therefore, people do not vote for candidates who can by law exercise the offices voted for, it seems to me to follow that they tacitly consent that those who do vote for such as are eligible, shall elect on equivalent principles. It never can be an answer to this position, that the electors did not know of the ineligibility of the candidate. If such an excuse were good for anything, it ought to be good to render effective the votes for the ineligible candidate, and thus give him the office in spite of the existing disqualification.
I admit an absence of authority on the points I have thus assumed, but I regard them as resulting necessarily from the laws regulating elections. In England there are numerous cases of corporation elections of disqualified persons, in some of which the elections were regarded as nullities, so completely, as to authorize new elections without proceedings to declare the office vacant. In all, disqualification was a certain ground of ouster: Wilcox on Corp., Part I., marg. pp. 492 to 512 inclusive. In the case of The Commonwealth ex rel. Clark v. Read, supra, the defendant was held to have been elected treasurer by the county board, having received but one legal vote out of twenty cast. Nineteen were cast vivd voee, and one by ballot, which was the mode prescribed by law, and it was held that this constituted an election. The nineteen cast away their votes, and by so doing permitted the twentieth man to elect. So here, I think, the same rule should apply. The majority of the voters did actually, though not intending it, throw away their votes by voting for a candidate who, by the terms of the Constitution, was incapable of holding the office. The people have no more right, unless in their primary legislative capacity,, to dispense with the Constitution, than their servants, the legislature and the courts, have. And it is the positive duty of the latter not to permit it to be done by any merely pretended authority ; and in my view of the obligation, no mere technical or formal matter should be permitted for a moment to prevent redress, when it is plain the Constitution has been violated. I regard the special interest in this relator as entirely sufficient. I might acquiesce in the rule insisted on where a by-law of-a corporation is claimed to have been violated, or even in case of an Act of *279Assembly in special cases, but I cannot where the great fundamental law, the Constitution, is invaded.
It is not an answer to all or any of this, that Mr. Cluley is a good officer and a highly respectable gentleman. I am happy to admit he is both ; or that his first commission was accepted and exercised for the benefit of the deceased sheriff’s family. Let that be set down largely to his credit as a man, but that will not cancel the effect of his first commission on his second. That step is irretrievable. It makes one of two commissions within less than six years. The Constitution prohibits this in regard to the office of sheriff in any period less than six years. The violation of the Constitution is therefore plain and palpable; as clearly so as if Mr. Cluley had been the sheriff on the day it is claimed he was elected in 1866. The only difference would be in degree and not in principle. Nor is the nullifying effect of the constitutional prohibition to be avoided on the ground that the small period of time during which he held a commission, being for the balance of Sheriff Wood’s term, is to be regarded as a mere continuation or extension of Wood’s commission. Length of time or duration of the commission is nothing to the purpose. The words of the Constitution already quoted are — “ No person shall be twice- chosen or appointed sheriff IN any term op six years.” It is the number of the commissions which is forbidden. The length of time has nothing to do with it. Here there were two commissions within the prohibited period. The first destroys the last; and so we should say -if the facts be as alleged and not denied. For these reasons, and many others that might be assigned, I am for allowing the writ of quo warranto to issue in this ease.
I do .not regard instances of legislative action as furnishing a judicial rule in regard to who is, or is not, entitled to an office, where the candidate having the greatest number of votes is held as entitled to a seat. Results in such cases are unfortunately so often controlled by party feeling, that they ought not, generally at least, to be regarded as fixing any rule of law on the subject. Besides, the nature of the authority of -the legislative body over their members, is exercised under an authority in the body, that is not responsible to any appellate tribunal, and it is as frequently exercised on purely legislative as on judicial principles; and oftener on party grounds than on either. I take no account, therefore, whatever, of those cases here or in England, which have been cited on this point.
I regret to differ with the majority of the court in this case ; but doing so, seemed to require at my hands some reasons therefor, and I have given some of the many which I feel to justify me therein.